Builders, developers and property owners are often cited for zoning violations that become the subject of criminal enforcement proceedings in court (i.e. appearance tickets).  Certainly, a party can have the court decide the matter, however, an appeal to a Board of Zoning Appeals can be used to stay any and all court enforcement proceedings.  This can be a particularly useful tool, when a property owner or developer is cited for zoning code violations that may shut down activities and force a timely and protracted court battle.

In fact, New York Town Law Section 267-a(6) provides a clear path for a stay to have zoning issues resolved before local zoning boards rather than in a judicial proceeding.  N.Y. Town Law Section 267-a(6) and its correlating village and city law sections provide as follows:

6. Stay upon appeal.  An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the board of appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay, would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown (emphasis added).

In People v. Bell, 183 Misc.2d 61 (Justice Ct., Village of Tuckahoe 2000), the Village building inspector issued appearance tickets returnable in the Village’s Justice Court for (1) no certificate of occupancy, (2) change of use of land without obtaining a certificate of occupancy, (3) no site plan approval, and (4) no screening of activities.  A jury trial was scheduled for September 28, 1999.  On September 27, 1999, Bell Atlantic appealed the subject matter of the appearance tickets to the Zoning Board and claimed a stay under section 7-712-a(6) of Village Law (the correlating provision of Village Law regarding stays).  The appeal by Bell Atlantic sought, among other things, to “overturn decision of the Village of Tuckahoe Building Inspector that the present use of the premises is a change of use that requires site plan approval and a certificate of occupancy for the premises.”

In Bell, the Village did not question Bell Atlantic’s ability to appeal the building department’s determination to the Board of Zoning Appeals, but challenged the stay of criminal proceedings in the Village Justice Court.  In upholding the stay, the court rejected the Village’s position as exalting form over substance.  The Court reasoned that the statute mandates a stay when the issue before the court and the Board of Zoning Appeals are the same, because the purpose of the statute is to obtain a definitive ruling from the Zoning Board of Appeals before making a judicial determination.  This avoids conflicting rulings from a judicial determination and the Board of Zoning Appeals.  The fact that the appeal did not originate with a denial of an application or notice of violation is immaterial.  Id.

Based on Bell, it appears that any action or decision of the building department, even a criminal enforcement proceeding, is automatically stayed by appealing such action to the Zoning Board of Appeals, as a matter of law.  This can be a powerful tools, when a property owner is faced with a potential court proceeding for zoning violations.  This ability to “stop the clock” may in turn provide an ability to negotiate a practical solution.

It must be noted that appeals of decision by a zoning enforcement officer cannot be neglected.  Such an appeal must be taken within sixty days after the filing of any order, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal.  See, Town Law Section 267-a(5)(b).

In Matter of Sagaponack Ventures, LLC v Bd. of Trustees of the Vil. of Sagaponack, the Second Department upheld the denial of an Article 78 proceeding seeking to vacate and annul a determination of the Board of Trustees of the Village of Sagaponack (the “Board”).  In its determination, the Board denied the site plan application submitted by Sagaponack Ventures, LLC (the “Petitioner” or “Applicant”), which sought to develop a 13,780-square foot single-family residence on the northwest corner of its 43.5-acre oceanfront property (the “Property”) located in the Village of Sagaponack (the “Village”).  Because it is located within the Village’s Agricultural Overlay District, the Property is subject to certain development guidelines set forth in the Sagaponack Village Code (the “Code”), which must be considered by the Board in rendering a determination.  Section 245-67(M) of the Code provides the following:

Agricultural Overlay District.  In considering site plan applications for all buildings or other structures that are to be situated on a lot equal to or greater than five acres and located within the Agricultural Overlay District, the Planning Board shall use the following factors to determine the most suitable location of the buildings or other structures for the current and future development of the property and the most suitable area for future farmland preservation:

(1)  Development areas shall be located on the portion of the lot where impacts on the loss of prime agricultural soils are minimized.

(2)  Development areas shall be located on the portion of the lot where impacts on views and vistas of the farmland areas from public rights-of-way are minimized.

(3)  Farmland areas shall be located on the portion of the lot to encourage continuity of farmland and farming operations on the lot and adjoining properties.

(4)  Development and farmland areas shall be located to minimize impacts on the future subdivision of the lot in accordance with open space requirements.

In its decision, the Board assessed each of those four factors.

With respect to the first factor, the Board noted that all of the 43.5 acres of the Property is comprised of “prime agricultural soils.”  However, the Board gave considerable weight to the fact that the southern portion of the Property was disturbed in 2007, when topsoil was removed and the area was filled, resulting in a change in elevation.  Furthermore, the fact that the Applicant did not permit a soil scientist to inspect the Property at the Village’s expense did not sit well with the Board.  One thing was clear to the Board—development on the portion of the Property requested by the Applicant would undoubtedly have a significant impact on the loss of prime agricultural soils, and would reduce the amount of farmable land on the Property.

With respect to the second factor, the Board found that the application as submitted would significantly impact views and vistas of the remaining farmland on the Property from public rights-of-way.  The southern portion of the Property is on the ocean, whereas the northern portion of the Property is adjacent to a public highway.  Thus, the Board found that the public’s views and vistas of the farmland would be minimized if development were to occur on the southernmost portion of the Property, rather than on the northwest corner.

The third factor was not much of a concern to the Board because no portion of the Property, nor the land adjacent to the Property, has been farmed over the past several years.

Lastly, in considering the fourth factor, the Board determined that development on the northwest corner of the Property would impact any future subdivision of the Property because the parcel would not conform to the applicable open space requirements upon the subdivision.

Based on its assessment of the four factors in Code Section 245-67(M), the Board ultimately determined that the northwest corner of the Property was not “the most suitable location” for the development of the Petitioner’s proposed single-family residence.  Despite the Petitioner’s contrary contentions, the Second Department upheld the trial court’s determination that the Board’s findings were rationally based and a valid exercise of the Board’s broad discretion.

As a final takeaway, this case emphasizes the importance of those seeking to develop their property to be aware of restrictions or unique guidelines in their local code, which may affect their development rights depending on their property’s characterization or location.

A Town of East Hampton resident can continue to operate a home-based dog-walking and pet sitting business after the East Hampton Zoning Board of Appeals voted unanimously to overturn a previous determination by the Town’s Building Inspector, who concluded that the business use was not a “home occupation” as defined in the East Hampton Town Code.

For more than a decade, Lori Marsden and her husband operated a dog-walking and pet sitting business known as Lori’s Pet Care out of their single-family residence.  Their services include pet care such as feedings and administering medication for all types of pets, as well as walking dogs. The business also offers daily dog day care and pet sitting services, and accommodates overnight stays when pet owners leave town.

In July 2017, a Town Code Enforcement Officer issued violations to Marsden for operating the business out of her house, which is located within a residential zone within the Town.  While her enforcement action was pending in the Town’s Justice Court, Marsden’s attorney sought a determination from the Building Inspector that the dog-walking and pet sitting service was a lawful home occupation business under the Town Code.

Section 255-1-20 of the East Hampton Town Code permits residents to operate businesses out of their home as long as they do not exceed 25 percent of the gross floor area or 500 square feet, whichever is less; that the business be conducted solely by those occupying the dwelling, except for one additional employee; and that there be no external evidence of the business, such as noise.

The Building Inspector determined that the use did not qualify as a home occupation pursuant to the Town Code based on her finding that the business produces external evidence of the business at times when the dogs are taken out of the residence during walks, playtime or to relieve themselves.  The Zoning Board disagreed.

In its March 19, 2019 Determination, the Zoning Board determined that Marsden’s pet sitting business met the Town Code definition of home occupation for several reasons.  Specifically, the Board found it compelling that the use does not change the character of the neighborhood and is secondary to the residential use of the property.  Moreover, the Board found that the record did not support the Building Inspector’s finding that the use created external evidence of the business operation.  Indeed, a member of the Board noted that there were no kennels outside or other evidence of the dogs.  Finally, the Board noted that the Town Code expressly excludes a “breeding kennel” from its definition of home occupation, but not a “boarding kennel.”

The Zoning Board was not persuaded by a video depicting barking dogs that was submitted by a neighbor at the January 29, 2019 pubic hearing.  Instead, it noted that it cannot be determined from the video whether the dogs barking are Marsden’s own dogs or dogs she is pet sitting for or even if they are dogs are on Marsden’s property.  After noting that Marsden has two dogs of her own, the Board concluded that there was “no evidence that the activities by dogs from the pet sitting business can be distinguished from the use of the residence by [Marsden’s] own dogs.”

The Zoning Board’s determination is a victory for Marsden, and allows her to operate Lori’s Pet Care from her home provided the requisites of Town Code § 255-1-20 are met.  However, there are some who believe that the East Hampton Town Board should update the home occupation definition specifically as it relates to dog care.  Citing the necessity for dog day care to some pet owners, Zoning Board member Tim Brenneman stated during one of the meetings that “the issue of pet care dog care is worthy of a more detailed definition that better considers the needs of the community.”

In The Committee for Environmentally Sound Development v. Amsterdam Avenue Development Associates, LLC, 2019 WL 1206357, 2019 N.Y. Slip Op. 30621(U), Index No. 153819 (Sup. Ct. New York Co., March 14, 2019), the Supreme Court, New York County, granted a petition to annul a resolution upholding the issuance of a building permit (“Permit”) for the construction of a 55-story mixed commercial-residential tower (“Project”) because the interpretation of the applicable zoning resolution had changed after forty years. The Project site is comprised of 110,794 square-feet and is located at 200 Amsterdam Avenue, New York, New York (“Property”), within a zoning block bounded by Amsterdam Avenue, West 66th Street, West End Avenue and West 70th Street (“Block”).

The Block was originally a single, large zoning lot containing the Lincoln Towers condominium buildings. In 1977, the Block was subdivided into two separate zoning lots: one zoning lot contained the Lincoln Towers (“Lincoln Lot”) and the other zoning lot would ultimately, in effect, become the Property.[1] Zoning lots and tax lots are two distinct concepts, and the distinctions and interpretations thereof under New York City’s (“City”) zoning resolution form the basis of the challenge and annulment of the Permit.

Amsterdam Avenue Redevelopment Associates, LLC (“Amsterdam”) sought to develop the Project, and the initial challenge claimed violations of the zoning resolution’s open space requirements. (We discussed the City’s Open Space law recently in a January 2019 Blog.) In May 2017, the City’s Department of Buildings (“City DOB”) concluded the Project satisfied the open space requirements, approved the proposed zoning diagram and issued the Permit (“May 2017 Approval”). The Committee for Environmentally Sound Development (“CESD”) appealed the May 2017 Approval to the City DOB’s Manhattan Borough Commissioner, who issued a notice of objections and intent to revoke the Permit. The City DOB noted it would verify the open space ratio and the proper formation of the zoning lot. In September 2017, the City DOB determined the Project complied with the zoning resolution, lifted the notice to revoke and reissued the Permit (“September 2017 Approval”).

CESD challenged the September 2017 Approval by appealing to the City’s Board of Standards and Appeals (“City BSA”), seeking an interpretation of the zoning resolution pertaining to whether the Property complies with the definition of a “zoning lot.” Specifically, CESD claimed that the Property, made up of parts of several tax lots, was not valid under the City’s zoning resolution and this noncompliance invalidates the Permit. Ultimately, in July 2018, the City BSA denied the appeal and upheld the Permit (“BSA Resolution”). CESD and the Municipal Arts Society of New York (“MASNY”) commenced an Article 78 proceeding seeking to annul the BSA Resolution, revoke the Permit and halt the Project’s construction.

CESD and MASNY argued the BSA Resolution should be annulled and the Permit invalidated because the 39-sided zoning lot comprising the Property is not a proper zoning lot within the meaning of the zoning resolution, i.e. it is comprised of several partial tax lots and, so, it is neither unsubdivided nor consists of two or more lots of record. Amsterdam argued the Permit was properly granted as per the historical interpretation of “zoning lot” under the City’s zoning resolution. In pertinent part, Amsterdam relied upon a City DOB Departmental Memorandum of Acting Commissioner Irving Minkin from 1978 (“Minkin Memorandum”), which summarizes a number of amendments to the definition of “zoning lot” at the time, and concluded that a single zoning lot may consist of one or more tax lots or parts of tax lots.

However, during the appeal before the City BSA, the City DOB’s Assistant General Counsel submitted a letter (“DOB Letter”) in which he agreed with CESD’s and MASNY’s interpretation of the definition of “zoning lot,” and admitted the Minkin Memorandum was incorrect. The DOB Letter also indicated that the City DOB began writing a departmental bulletin to clarify the proper procedures and forms required to create and verify proper formation of a zoning lot: “[i]n the context of the subject appeal, the Minkin Memo[randum’s] incorrect interpretation…came to light.” The correct interpretation does not permit a “zoning lot” to consist of parts of tax lots.

Despite this, the DOB Letter requested that the City BSA affirm the September 2017 Approval based upon the Minkin Memorandum because: (i) the Minkin Memorandum is not unreasonable (albeit incorrect); (ii) the September 2017 Approval is based upon a 40-year longstanding interpretation of the zoning resolution; and (iii) the Minkin Memorandum was not yet rescinded.

The Supreme Court granted the petition and annulled the BSA Resolution, which upheld the Permit, based upon the DOB Letter, among other things. The Court held the BSA Resolution is unreasonable because it failed to address the merits of CESD’s appeal of the Permit, i.e. interpreting a “zoning lot,” and it ignores the City DOB’s determination that the Minkin Memorandum is flawed, thus leaving the issue unresolved. Moreover, the BSA Resolution is inconsistent with the zoning resolution as interpreted by the City DOB. The City DOB stated that the Minkin Memorandum was incorrect at the time of CESD’s appeal, but the City DOB chose not to act on its draft bulletin and planned to hold the same in abeyance until the resolution of the issues herein. The City BSA’s decision to adhere to an admittedly wrong historical interpretation on the basis that it has not formally rescinded or superseded is erroneous. “[B]y publicly correcting its interpretation of [the zoning resolution] during [the appeal before the City BSA], the [City] DOB undermined the statutory basis for its issuance of the Permit in the first instance.”

The Court remanded the matter back to the City BSA  and instructed the City BSA to review the Permit in accordance with the plain language of the zoning resolution and in accordance with its decision. The ruling follows the well-settled principle that, absent narrow exceptions (e.g. bad faith), the present interpretation or effect of the law at the time of the review of a determination applies – not the interpretation or effect at the time the challenged determination was made.

[1] The Lincoln Lot consisted of portions of tax lots 1, 30, 70 and 80 and the entirety of tax lot 90; the other lot consisted of portions of tax lots 1, 30, 70 and 80 and the entirety of tax lots 10, 12 and 65 (“Other Lot”). In 2005, tax lots 1, 30, 70 and 80 became condominium lots 7501, 7505, 7502 and 7503, respectively. In 2007, tax lots 133 and 134 merged into the Other Lot. (At one point or another, tax lot 12 was reapportioned into tax lots 12 and 18). In 2012, tax lot 65 became condominium lot 7506 and merged with the Other Lot. Lastly, in 2015, tax lots 10, 12, 18 and portions of condominium lots 7501 and 7505 were subdivided out of the Other Lot. Thus, the Other Lot ultimately consists of portions of condominium lots 7501, 7505, 7502 and 7503, the entirety of condominium lot 7506 and tax lots 133 and 134, and these comprise the Property.

Over the past several years, this blog has presented several posts on the topic of standing. It is a frequent topic because it is often raised as a threshold issue in zoning and land use cases. If a challenger to an administrative decision fails to establish it has standing, the challenge will be dismissed even before the Court reaches the merits.

A decision from the Appellate Division, Second Department, issued on February 20, 2019, involved an interesting take on standing. In Matter of City of Rye v Westchester County Board of Legislators, the City of Rye (City) tried to upend a negative declaration issued by the Westchester County Board of Legislators (County) under the State Environmental Quality Review Act (SEQRA) in connection with several proposed projects at Playland Park (Park), an amusement park. The Park is owned by the County and is located entirely within the City’s boundaries.

The facts are set forth in the Trial Court Decision, Order and Judgment, issued March 20, 2017. In August 2010, the County sought proposals to reinvent the “iconic and historic Playland Park to thrive in the 21st century” through private redevelopment, “in a way that maximizes its resources and location, while reducing the financial burden to taxpayers of operating Playland Park.” In July 2013, the County entered into an agreement with Sustainable Rye Playland, Inc., to be the manager and operator of the Park.

A dispute arose between the County and the City as to which would act as lead agency for the proposed projects. The City requested that the New York State Department of Environmental Conservation (NYSDEC) determine which governmental entity should be the lead agency, but the NYSDEC never made that determination, as the agreement with Sustainable Rye Playland, Inc. was terminated and the City thereafter withdrew its lead agency dispute.

In August 2015, Standard Amusements LLC entered into an agreement with the County to operate and manage the Park and to undertake certain redevelopment projects at the Park.  In January 2016, the County Director of Planning prepared a Full Environmental Assessment Form for projects to renovate the parking, plaza and games structures at the Park. After several public meetings were held, the County, in May 2016, adopted a negative declaration resolution for the projects.

Two months later, in July 2016, the City advised the County that it objected to the County declaring itself the lead agency, and contended that the County failed to give appropriate notice of the May 2016 meeting. Later in July, the County issued a notice of the negative declaration to “Involved/Interested Agencies,” including the City. The City and the two individual petitioners sued.

As to the two individual petitioners, the trial court recited the requirements to establish standing.  A petitioner that is challenging an administrative decision has to show that it  “sustained or will sustain an injury-in-fact, which injury is within the zone of interests promoted or protected by the statutory provision under which the administrative officer has acted, and that the harm the petitioner suffered from such injury is different in some way from that suffered by the public at large” (citing the landmark case of Matter of Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 [1991]). The trial court noted that in SEQRA cases, the injury-in-fact must be environmental in nature. The trial court also noted that when standing is raised, “perfunctory allegations of harm” are not sufficient, and petitioners “must prove that their injury is real and different from the injury most members of the public face” (citing to Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 [2009]). The trial court determined that neither individual petitioner met this burden of proof and also rejected their claims that their properties were in close proximity to the project site to raise a presumption of injury. One of the properties was within 150 feet from the boundary line of the Park site, the other was about a mile away. Neither petitioner got the presumption because, as the trial court noted, proximity is measured from the petitioner’s property to the actual site of the project at issue, and not from the nearest boundary line of the entire parcel it is located on. As to the alleged injury, complaints about being able to see the lights of the rides, or park visitors parking illegally along the streets of a petitioner’s neighborhood, already existed and were not related to, or a consequence of, the proposed projects.

Turning to the City’s standing, the trial court noted that the entire Park is located within the borders of the City, but the proximity inference  does not operate the same way for a municipal entity.  Rather, a municipal entity has to “articulate a specific municipal interest in the potential environmental impacts of the action being challenged” from the County’s alleged failure to comply with SEQRA. For example, standing has been conferred when the lead agency failed to consider the impact on a municipality’s community character in connection with the approval, or when the action is inconsistent with the surrounding density zones in adjacent villages and could lead to substantial residential development in an adjoining town or adversely affects the municipality’s water supply. The trial court concluded the City did not have standing under this theory.

The trial court then evaluated the City’s claim of standing due to its role as an “involved agency.” The trial court noted that an “involved agency” “has jurisdiction by law to fund, approve or directly undertake an action.”  The trial court noted that the City did not directly allege it was an “involved agency” in the petition. Instead, the City contended the County’s “actions have materially diminished Rye’s ability to promote, protect and improve the quality of life for its residents and to protect and, where possible, enhance the environment” or “violated Rye’s city code and undermined Rye’s efforts and plans to enhance and promote its status as a coastal city on Long Island Sound by protecting natural resources.”

The trial court applied a balancing test to determine if the County’s actions were or were not exempt from the City’s zoning code and other local laws.  The factors it used included (1) the nature and scope of the entity seeking immunity from the local laws, (2) the land use involved with the project; (3) the extent of the public interest served by the project, (4) the effect the local laws have on the project, and (5) the impact on legitimate local interests. The trial court found that balancing the public interests favored the County. It noted that the Park had been in existence for almost a century, prior to the City’s existence; the City did not identify any state law that gives it express authority to permit, approve or regulate the County’s use of the Park; and the County’s action, although exempt from City oversight, was subject to oversight, in particular via the various public hearings involved in the approval process. The trial court, therefore, concluded the City lacked standing as an “involved agency.”

The Second Department affirmed the determination of the trial court, dismissing the proceeding because the City lacked standing. First, the appellate court discussed and rejected the City’s assertion that it had standing because it was an “involved agency” under 6 NYCRR 617.2[t], because it found that the proposed development projects are immune from local zoning and land use laws.   The appellate court then discussed and rejected the City’s assertion it had standing based on its “interest in the potential environmental impacts of the development projects on the City of Rye’s community character.” The appellate court also affirmed the lack of standing of the two individual petitioners, noting that both had failed to demonstrate that they suffered an injury-in-fact that fell within the zone of interests protected by SEQRA.

So, what’s the takeaway?  When confronted with a challenge to an administrative decision, a municipality should always evaluate whether or not a petitioner has standing, regardless of whether the challenge is from a governmental entity, non-governmental entity or person.

 

E-cigarettes and vaping have received a very mixed reception in New York.  While the multiplying number of vape shops and booming e-cigarette sales would suggest a surefire rise for the industry in our State, growing opposition from the public and multiple levels of government could nip the industry in the bud.

In 2017, Governor Cuomo signed into law an amendment to the Clean Indoor Air Act prohibiting the use of e-cigarettes and vaping products in any setting where the smoking of traditional tobacco products is prohibited. See Public Health Law §§ 1399-N, 1399-O.  This includes most indoor settings as well as certain outdoor, public and work places.  Today – in response to growing public concern over health effects and teenage addiction to vaping products – the State is now considering a ban that would strictly regulate all but a few of the available “vape juice” flavors (particularly, kid-friendly flavors like bubblegum, breakfast cereal, and cotton candy) in an effort to make vaping less attractive to young consumers.  See, Brodsky, Robert “LI vape shops would close, some say, if NY bans flavored e-cigarettes”, Newsday, Nov. 9, 2018.

At the local level, a growing number of Counties across the State, including Nassau and Suffolk Counties, have raised the minimum age for the purchase of tobacco products (including e-cigarettes) from 18 to 21.  The Town of North Hempstead also recently joined that list.   See Town of North Hempstead Code § 54-1 (2017). Certain counties, like Suffolk County, are also currently weighing options for enacting their own restrictions on the sale of flavored vaping products. See Tyrell, Joie “Rally backs bill to limit flavored e-cigarettes in Suffolk County” Newsday, December 13, 2018.

Based on these trends, it is unsurprising that government at the most local level, towns and villages, are also utilizing their police powers to join in the fight against e-cigarettes and vaping.  On Long Island alone, numerous towns and villages have enacted local controls on the use of vaping products and the locations where they may be sold.  Some municipalities have acted in a limited sphere by prohibiting the use of e-cigarettes and vaping products on or in the vicinity of public property (i.e. parks and government buildings) and in proximity to schools and places of worship. See Town of Hempstead Code § 78-3.2 (2018); Village of East Hampton Code § 211-17 (2018).  Others have turned to their zoning power to remove establishments selling e-cigarettes and vaping products from their downtowns and commercial centers. See Town of Babylon Code §§ 213-129.1, 213-166, 213-166.1, 213-490 (2018); Town of Islip Code § 68-341.1 (classifying “vape lounges” and “vape shops” as adult uses and permitted only in the Industrial 1 District) (2016); Town of Smithtown Code § 322-30.5 (2018) (prohibiting vape stores and lounges within 1,500 feet of parks, playgrounds, schools and religious uses); Village of Floral Park Code § 99-18 (2018) (classifying vape shops as adult uses permitted only in the B-3 Business District).  One village has enacted an outright ban on the sale of vaping products in its business districts. See Village of Lindenhurst Code § 193-92 (2017).

Proponents and purveyors of e-cigarettes and vaping products are decrying the mounting regulations governing the industry and some are now attempting to push back. See Rowland, Matt “Using ‘family-friendly’ excuse, Lindenhurst, NY wants to ban vape shops” Vapes.com, October 4, 2017.  A quiet town in suburban Westchester County could be the test case on whether a local zoning ordinance in our State aimed at e-cigarettes and vaping products is a valid exercise of a local government’s land use power.

In May, 2018, the Town of Bedford, New York, adopted Local Law No. 5 of 2018, which enacted 125-29.8 of the Town Code, regulating “electronic nicotine delivery systems”.  Citing public health and safety concerns, the law confines “vape shops” to the Town’s Roadside Business (RB) Zoning District, which is situated in one area of the Town.  The law goes one step further to prohibit the sale of electronic nicotine delivery systems (i.e. e-cigarettes and vape pens) at any business outside the RB Zoning District, regardless of the principle use of the property.  See Town of Bedford Code § 125-29.8(C)(3) (2018).

It has since been reported that a group of gas station owners and operators in the Town of Bedford (located outside the RB Zoning District) have filed suit against the Town, challenging the legality of the 2018 zoning amendment.  See McKinney, Michael P. “Several gas businesses sue Bedford over law restricting e-cigarette sales” Rockland/Westchester Journal News, December 19, 2018.  If lawsuit goes forward, it will be one of the first (if not the first) challenging a local zoning enactment targeting e-cigarettes and vaping.  The outcome of the action will, therefore, be of tremendous interest to supporters and opponents of vaping alike.

At the end of the day, e-cigarettes and vaping products are already in the market place and have proven themselves to be profitable.  Therefore, in the opinion of this writer, it is unlikely that they will be banned in New York completely.  After all, traditional cigarettes and tobacco products continue to be sold in convenience stores and other businesses throughout the State despite the now widely known and accepted health problems they cause.  And like “Big Tobacco”, the purveyors of this generation’s e-cigarettes and vaping products may simply need to come to terms with strict regulatory requirements and negative social opinion as the price of doing business in New York (and elsewhere).  We will all just have to wait and see.

 

The New York State Department of Environmental Conservation (NYSDEC) is proposing significant revisions to its State Environmental Quality Review Act (SEQR) Handbook to conform with recently-adopted amendments to the SEQR regulations. These amended regulations became effective in January 2019. The proposed changes to the SEQR Handbook are available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/dseqrhandbook.pdf.

One of the primary targets of the amended SEQR regulations concerns Type II actions. Type II actions are those that have been determined not to have a significant adverse environmental impact and do not require review under SEQR. The proposed changes to the SEQR Handbook add quite a number of actions to the list of Type II actions to conform to the amended regulations. For example, a project calling for the replacement, rehabilitation, or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, typically is considered a Type II action. Now, such a project for the purpose of meeting energy codes also is a Type II action.

The proposed SEQR Handbook adds the following as Type II actions:

  • Retrofitting an existing structure and its appurtenant areas to incorporate green infrastructure;
  • Installing telecommunication cables in existing highway or utility rights of way using trenchless burial or aerial placement on existing poles;
  • Installing solar energy arrays where such installation involves 25 acres or less of physical alteration on sites such as closed landfills and brownfield sites;
  • Installing solar energy arrays on an existing structure as long as the structure is not a specified historical place;
  • A government agency’s acquisition and dedication of 25 acres or less of land for parkland, or dedication of land for parkland that was previously acquired, or an agency’s acquisition of a conservation easement;
  • Sale and conveyance of real property by public auction pursuant to Article 11 of the Real Property Tax Law, i.e., when a municipality or state agency acquires land through foreclosure or other means where the land reverts to the agency due to a failure of the owner to remain current on property taxes; and
  • Construction and operation of an anaerobic digester (which utilizes the naturally occurring process of anaerobic digestion) within currently disturbed areas at an operating publicly owned landfill, provided the digester meets certain specific conditions.

The proposed SEQR Handbook also focuses on Type I actions, which are actions that are considered more likely to have significant adverse environmental impacts and must be reviewed further under SEQR. The proposed SEQR Handbook contains a number of changes to the list of Type I actions to be consistent with the amended regulations. For example, the threshold for triggering a Type I SEQR inquiry for actions involving the construction of new residential units has been lowered. Previously, that threshold for a city, town, or village having a population of less than 150,000 was 250 units to be connected to existing community or public water or sewer systems. The amended regulations lower that to 200 units. Similarly, the threshold has been lowered for a city, town, or village having a population of greater than 150,000 persons but less than one million. It previously had to involve 1,000 units; that has been changed to 500 units. The proposed changes to the SEQR Handbook take into account these lower thresholds.

There is another notable change regarding Type I actions in the proposed SEQR Handbook, which is based on the amended regulations. Before January 1, 2019, a lead agency could waive the requirement of filing an environmental assessment form for a Type I action. The amended regulations eliminated the ability of a lead agency to waive that requirement.  This arises from the fact that the scoping has been made mandatory by the amended regulations. Scoping is a process that develops a written document that outlines the topics and analyses of potential environmental impacts of an action that will be addressed in a draft environmental impact statement. Scoping narrows the issues and ensures that the draft environmental impact statement will be a concise, accurate, and complete document that is adequate for public review. The process for scoping is set out in 6 NYCRR § 617.8. The proposed changes to the SEQR Handbook make scoping mandatory for every draft environmental impact statement (except that mandatory scoping does not apply to supplemental environmental impact statements).

The deadline for public comments on the proposed SEQR Handbook expired on February 1, 2019 and the expectation is that the SEQR Handbook changes will be finalized soon.

In 2015 the Village of East Hampton enacted five local laws reducing the maximum allowable gross floor area for residences, reducing the maximum permitted coverage for all structures,  reducing the maximum allowable gross floor area for accessory buildings, amending the definition of “story” and amending the definition of “cellar”. The petitioner/plaintiffs (“petitioners”) own real property in the Village and commenced a hybrid Article 78 proceeding and Declaratory Judgment action entitled Bonacker Property, LLC v. Village of East Hampton Board of Trustees et al., Supreme Court, Suffolk County, Index No. 15-12506, September 2, 2016, challenging the enactment of the local laws. Petitioners sought to annul the Board of Trustee’s adoption of a negative declaration under the State Environmental Quality Review Act (“SEQRA”) and claimed that (i) the local laws were not in accordance with the Village Comprehensive Plan, (ii) the Board of Trustees improperly relied upon recommendations from the Planning and Zoning Committee, and (iii) the Board of Trustees failed to comply with SEQRA. The petition also sought declaratory relief. The Supreme Court denied the petition, dismissed the proceeding/action and declared the local laws constitutional and valid. The petitioners appealed.

The Appellate Division, Second Department upheld the Supreme Court’s determination in Matter of Bonacker Property, LLC et al, v. Village of East Hampton Board of Trustees, et al., dated January 23, 2019. The Court noted that New York State Village Law §7-722(11)(a) requires that where a village has adopted a comprehensive plan, the village’s zoning decisions must be in accordance with the plan. However, the Court went on to recognize the presumption of validity afforded to the legislative act of enacting zoning laws. The Court quoted Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 186, stating “[e]ven if the validity of a provision is fairly debatable, the municipality’s judgment as to its necessity must control.”   Ultimately, the Court found the enactments limiting gross floor area and coverage “entirely consistent with the comprehensive plan.”

The Court also found that the Village Board of Trustees complied with the requirements of SEQRA stating the Board identified the relevant areas of environmental concern, took the requisite “hard look” at them and made a reasoned elaboration in its negative declaration. The Court stated, “[g]iven the nature of the proposed action here, which would have only beneficial environmental effect, and the focus of the assessment form, which is to identify negative environmental effects of the proposed action, the rapid review and completion of the environmental assessment form was not arbitrary or capricious.”

Moreover, the Court found that the record supported the Supreme Court’s determination that the Planning and Zoning Committee was advisory in nature, did not perform governmental functions and it was proper for the Board of Trustees to rely on the committee’s advice pertaining to the enactment of the local laws.

Ultimately, the Court upheld the Supreme Court’s determination with regard to the Article 78 claims however remanded the declaratory judgment claims back to the Supreme Court since the Supreme Court improperly employed the summary procedure applicable to an Article 78 proceeding to dispose causes of action to recover damages or seeking declaratory judgment. The Court noted, “where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action.” Thus, the Court remitted the matter back to the Supreme court for further proceedings on those causes of action for damages and declaratory judgment. Finally, the Court expressed no opinion as to the merits of those claims.

In Abbatiello v Town of North Hempstead, 164 A.D.3d 785 [2d Dept. 2018], the Second Department recently reversed Supreme Court, Nassau County and granted the petitioner’s CPLR Article 78 challenge to the Town of North Hempstead Board of Zoning Appeals (“Board”) denial of a use variance.  In finding that the house was a “legal nonconforming” 2-family residence, the Appellate Division ordered the Town to issue the requested  use variance.

A legal nonconforming use, commonly referred to as “grandfathered”, is a use of property which lawfully existed prior to the enactment of a zoning ordinance which now prohibits it.  The “legal nonconforming” use doctrine is a fact sensitive inquiry that protects property rights, which is directly at odds with a municipality’s comprehensive plan for an area.

The courts are routinely the venue used to protect legal nonconforming uses property rights.   In Abbatiello, when the petitioner purchased the property in 1977, he believed that the house was a legal two-family residence.  Since he purchased the property, the petitioner has been renting out the two units, and he has obtained various permits from the Town allowing him to do so.  In October 2013, the petitioner applied for a variance to permit him to continue using the property as a two-family dwelling.  The Town rejected the application, and the petitioner appealed to the Board, which ultimately denied the petitioner.  The Supreme Court affirmed the Board’s denial.

In reversing the Supreme Court, the Appellate Division found that the property owner was entitled to the use variance permitting him to use the property as two-family dwelling for rental purposes.  The owner presented evidence, including affidavits from neighbors and others who had lived in community for many years, which was sufficient to establish that property was legal two-family residence prior to amendments to the town zoning code, and there was no evidence presented to demonstrated that property had been converted into two-family dwelling after amendments.  As the Court noted, critical to establishing a legal nonconforming use, a property owner must demonstrate that the allegedly preexisting use was legal prior to the enactment of the zoning ordinance that purportedly rendered it nonconforming.  Id.

If you are facing zoning challenges to a use that is “grandfathered” you may be able to use the “legal nonconforming” doctrine to protect your property right(s).

In Matter of HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, the Second Department recently held that a property owner’s nonconforming use rights continue despite a temporary business interruption caused by a fuel truck accident and gasoline spill.

The property owner, Leemilt’s Petroleum, Inc. (the “Owner”), leased the subject property (the “Premises”) to a tenant who operated a gas station and a convenience store at the Premises. Both the gas station and the convenience store were legal nonconforming uses under the Town’s zoning regulations.

Under Section 240-29 of the Code of the Town of LaGrange (hereinafter the “Code”), a “nonconforming use . . . is one which existed lawfully” prior to the date that the Code or an amendment to the Code was enacted, which results in the failure of that prior use to conform to the Code (see Code § 240-29[B]). However, in order for such use to maintain its status as a nonconforming use, it must not be discontinued. The Code provides that a nonconforming use is deemed discontinued when “the nonconformity has ceased for a period of one year or more” (see Code § 240-29[F][4]).

The case arose out of an accident in June 2013, when a fuel delivery tanker hit a light pole, spilling approximately 3,000 gallons of gasoline on the Premises. This forced the gas station and the convenience store to temporarily cease business operations and begin remedial efforts. After the Owner completed the restoration work in October 2014, a leak was discovered in the gasoline pump system piping when it was tested in anticipation of reopening. This required additional remediation and further delayed the reopening.

Eventually, the Owner completed this additional work and thereafter sought approval from the Town’s building inspector to reopen the gas station. The Owner also applied for a building permit from the Town’s building inspector “to upgrade the convenience store building, which had not been damaged by the spill and remediation efforts.” Section 240-29(E) of the Code permits the “re-establishment of nonconforming uses after casualties,” under certain time conditions. Section 240-29(E) of the Code provides the following:

“If any nonconforming building or structure or any building or structure containing a nonconforming use shall be damaged or destroyed by fire or other casualty, such building or structure . . . may be restored and any such nonconforming use resumed to the extent that such building, structure or use existed at the time of the casualty, provided that a building permit for such restoration is obtained within a period of one year from such casualty and is diligently prosecuted to completion.”

Pursuant to that provision, the building inspector granted the Owner’s request, giving it one year from September 22, 2015—the date of the building inspector’s determination—to re-establish its nonconforming use.

A Dunkin Donuts franchise (the “Petitioner”) located across the street from the Premises appealed the building inspector’s determination to the Town’s Zoning Board of Appeals (the “ZBA”). The Petitioner contended that the nonconforming use had been lost and could not be re-established, citing Sections 240-29(E) and (F) of the Code.

The ZBA determined that “there was ‘more to maintaining a gasoline filling station than pumping gas,’” and that the “remediation of the petroleum spills amounted to a continuation of the nonconforming use.” Thus, there was no “discontinuation” within the meaning of Code Section 240-29(F)(4). Furthermore, the ZBA concluded that the building permit requirement of Code Section 240-29(E) did not apply to the convenience store because neither casualty affected the convenience store.

Ultimately, the Supreme Court rejected the Petitioner’s Article 78 challenge, holding that the ZBA’s determinations were rationally based and entitled to deference. The Second Department affirmed. Therefore, under HV Donuts, a nonconforming use may not be lost by remedial and restoration activities that temporarily shut down site operations, provided these activities are diligently pursued and completed.